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Saturday, December 1, 2012

Does Palestine’s UN Statehood Vote have more than Symbolic Value?

The UN General Assembly voted yesterday to recognize Palestine as a non-member observer state with an overwhelming majority of 138 States in favor, nine against and forty one abstentions. The vote has upgraded the Palestinian Authority’s status as a United Nations “permanent observer entity” to that of a “non-member observer state.” The 138 States that voted in favor of Palestinian Statehood eclipsed both the number of States that previously recognized a "State" of Palestine (132) and the simple majority required under article 18 of the Charter of the United Nations to pass the resolution.
One major question remains looming: what impact, if any, will the General Assembly’s vote have?

2. Do General Assembly resolutions have the force of law?
On the one hand, decisions of the General Assembly are not binding on United Nations member States. The General Assembly, unlike the Security Council, only issues binding resolutions in the area of budgetary matters regarding the allotment and collection of dues. Therefore, the General Assembly’s vote will have a largely symbolic effect without any real, immediate impact on the content of international law.
However, while General Assembly resolutions are not per se legally binding, they can contribute to the content of international law. General Assembly resolutions are a means through which States express their opinions about the status of international questions. A resolution that receives widespread support may therefore shape the content of customary international law, a binding source of international law. When a legal principle becomes customary international law, it becomes binding on States to the extent that they do not repeatedly and publicly announce opposition to the principle.
Moreover, the resolutions and declarations of international organizations, including the United Nations, may constitute opinio juris, one of the five sources of international law. While opinio juris is not itself a source of law, it serves as a “subsidiary means for the determination of rules of law” (article 38 Statute of the International Court of Justice).
Therefore, while General Assembly resolutions are not themselves binding, they may contribute to and shape the content of binding international law.

3. When is Statehood Recognized under International Law?
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Principles of International Law (2d ed.)
covers the principal topics of public
international law, including criteria for
Statehood and the recognition of
governments.

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A majority vote in favor of Palestine’s state status will not on its own clothe Palestine with Statehood. Rather, Palestine must either meet the elements of Statehood under the declarative theory of State recognition or otherwise achieve widespread and universal acknowledgement as an independent State under the constitutive theory of Statehood.

The declarative theory is the prevailing theory for the recognition of State sovereignty. It holds that an entity is recognized as a State when it satisfies the following objective criteria for Statehood, which were laid down in article 1 of the Montevideo Convention of on the Rights and Duties of States (1933):

- Permanent population;

- Defined territory;

- Effective government; and

- Capacity to enter into relations with other States.

There is a great deal of controversy as to whether Palestine meets these criteria. In addition to the question of Palestine’s “defined territory,” the element that faces the most objection is the question of effective government. Given the rift between Fatah and Hamas, many critics argue that there is no Palestinian government with effective and consolidated control over all of Palestine’s territory.

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Yet even if Palestine were not to meet the elements of the declarative theory test, it may qualify for Statehood under the constitutive theory, which holds that an entity is a State if recognized as such by the international community. “Recognition” refers to the formal acknowledgement by other states that an entity is a State. The vote of the General Assembly, while not having per se legal force, will demonstrate the extent to which Palestine Statehood holds the support of the international community and is thus instrumental in determining whether the criteria set forth under the constitutive theory of State recognition has been fulfilled.

4. Will the Recognition of Palestinian Statehood Have any Real Impact?

Many commentators have rightfully pointed out that even if the General Assembly approves Palestine’s application for Statehood, the situation on the ground will remain largely unchanged. For example, Israel, which will not recognize Palestine as an independent State, will continue to occupy the West Bank. Nations that opposed or abstained from Palestine’s Statehood vote will refuse to recognize Palestine as a State, enter into diplomatic relations with Palestine or recognize Palestinian diplomatic missions or consulates.

However, there is one important consequence that the recognition of Palestinian Statehood will have: it will grant Palestine access to international organizations, including the International Criminal Court. This will enable Palestine to initiate claims against Israel at the International Criminal Court. Unlike in the past, where countries could only pursue Israel at the International Criminal Court with Israel’s consent to the Court’s jurisdiction, if Palestine is recognized as a State and becomes a member of the International Criminal Court, the Court would have jurisdiction against Israel as to conduct that occurred on Palestinian territory, even without Israel’s consent. Under article 12.2 of the Statute of the International Criminal Court, the Court has jurisdiction whenever a State on whose territory crimes occurred (Palestine) is a member, even if the defendant State (Israel) is a non-member. Therefore, if Palestine claims that Israel committed crimes against humanity or war crimes on Palestinian territory, the Court would have jurisdiction over the matter.

5. Conclusion

Although the General Assembly vote is in many ways merely symbolic and carries less weight than the binding resolutions passed by the Security Council, the recognition of Palestinian Statehood will have far-reaching consequences that will impact negotiations with Israel as well as Palestine’s access to international organizations such as the International Criminal Court.

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About Me

“Man's capacity for justice makes democracy possible, but man's inclination to injustice makes democracy necessary."
- Reinhold Niebuhr
John Balouziyeh is an attorney at the international law firm Dentons. He previously worked at the US State Department, the Inter-American Court of Human Rights, and at various other international institutions. His books on law, human rights, and international affairs reflect a core belief that limited government best serves its people when based on the principles of individual liberty and economic freedom.